Horseman v. R. - FCA: Appeal dismissed from the bench - indirect attack on tax assessment

Horseman v. R. - FCA:  Appeal dismissed from the bench - indirect attack on tax assessment

Horseman v. Canada  (October 17, 2016 – 2016 FCA 252, Gauthier, De Montigny (Author), Gleason JJ. A.).

Précis:   In 2015 the appellant commenced an action in the Federal Court for an order that a Requirement to Pay served on him under the Excise Tax Act was “null and void and contrary to the Indian Act, Treaty No. 8 and section 35 of the Constitution Act, 1982, as well as damages for the amounts seized pursuant to the Requirement to Pay” [para. 2].  The Federal Court dismissed his action on the basis that it amounted to an indirect appeal of a tax assessment and, as such, was exclusively within the jurisdiction of the Tax Court.  Mr. Horseman appealed to the Federal Court of Appeal which dismissed his appeal from the bench, with costs.

Decision:   Unfortunately for Mr. Horseman the Federal Court of Appeal found no merit in his appeal and dismissed it from the bench, with costs:

[7]               Pursuant to section 19.2 of the Tax Court of Canada Act, R.S.C. 1985, c. T-2, the Tax Court has jurisdiction to consider the constitutional validity, applicability or operability of an Act of Parliament or its regulations and can issue consequential remedies if a notice of constitutional question is properly served: see Guindon v Canada, 2015 SCC 41; Grenon v Canada, 2016 FCA 4. It is also well established that the Tax Court has jurisdiction to consider claims under s. 87 of the Indian Act with respect to the applicability of tax requirements, and issues involving the application of Treaty 8 and whether it contains a tax exemption: see, for ex., Bastien (Succession de) v R, 2011 SCC 38; Pictou v R, 2003 FCA 9. Such assertions are properly tested in the Tax Court, and the case law relied on by the appellant does not support the contrary proposition. If anything, many of the cases cited by the appellant confirm that questions related to the validity of tax assessments must be adjudicated by the Tax Court, irrespective of how the claim is framed. Indeed, the Supreme Court has noted the importance of maintaining the integrity and efficacy of the system of tax assessments and appeals, as well as Parliament’s intent to set up a complex structure to deal with a multitude of tax-related claims whose structure relies on an independent and specialized court: see Canada v Addison & Leyen Ltd., 2007 SCC 33, at para 11).

[8]               For all the foregoing reasons, this Court finds that the motions judge properly characterized the appellant’s claim as being an indirect challenge to a tax assessment, and that it was plain and obvious that the Tax Court has exclusive jurisdiction over such a question. As such, the appeal will be dismissed, with costs.